Last December, we highlighted the sheer hypocrisy of President Joe Biden serving Maine lobsters at a White House event after his administration has regulated the industry almost out of business. The point had been raised by Rep. Jared Golden, a fellow Democrat who represents Maine's 2nd Congressional District. Earlier this month, however, the U.S. Court of Appeals D.C. Circuit found 3-0 that the National Marine Fisheries Service (NMFS) overstepped in a 2021 opinion that was supposedly meant to protect North Atlantic right whales.
The Maine Lobstermen’s Association (MLA) has been speaking out against the NMFS regulations at length and had filed suit in 2021, along with the administration of Gov. Janet Mills (D-ME).
In a message from Mills, "A Victory for Maine's Lobster Industry," the governor explained how complying with federal regulations came at a "huge expense" to the lobstermen, and no right whale death has been attributed to Maine lobstermen.
However, the federal government was still "moving heedlessly ahead with a new round of regulations that would have endangered the livelihoods of thousands of hardworking lobstermen who risk their lives to put food on the table, while paying out of their own pockets to protect right whales," Mills pointed out.
Beege Welborn at our sister site of HotAir addressed the opinion at length, written by Judge Douglas Ginsburg, who found that the NMFS' claims that fishermen killed 46 whales every 10 years were "capricious" and "contrary to law." Further, the court's opinion added that the "service’s legal reasoning was not just wrong; it was egregiously wrong." Again, the decision was unanimous.
"In this case, we decide whether, in a biological opinion, the Service must, or even may, when faced with uncertainty, give the 'benefit of the doubt' to an endangered species by relying upon worst-case scenarios or pessimistic assumptions," the opinion itself summarized. "We hold it may not." Also relevant is that the Endangered Species Act "requires the Service to use the best available scientific data, not the most pessimistic."
Because of such data, the NMFS cannot assign such a high risk to the Maine lobster industry. "The court's ruling vindicates what the Maine lobster fishery, and the countless communities who rely on it, knew all along -- that their practices support the conservation of the gulf ecosystem for generations to come," Mills had said in her message.
SeafoodSource has a good summary as well, in pointing to how Judge Ginsburg really called the NMFS out when it comes to the separation of powers:
“As any high school civics student should know, legislators vote on and the president signs bills, not their legislative history,” Ginsburg wrote. “Statutory text and structure do not authorize [NMFS] to ‘generally select the value that would lead to conclusions of higher, rather than lower, risk to endangered or threatened species whenever it faces a plausible range of values or competing analytical approaches,” the court wrote. “The statute is focused upon ‘likely’ outcomes, not worst-case scenarios. It requires the Service to use the best available scientific data, not the most pessimistic.”
Assuming a worst-case scenario in all its decision-making is fraught with problems, as “worst-case scenarios lie on all sides," Ginsburg wrote.
“It is not hard to indulge in one here: ropeless fishing technologies, weak links, inserts, and trawls may not work; permanent fishery closures may be the only solution,” the court said. “The result may be great physical and human capital destroyed, and thousands of jobs lost, with all the degradation that attends such dislocations.”
The MLA has long argued that the NMFS’s science didn’t support its plan and that the agency was overstepping its authority.
"MLA is grateful for the panel’s thorough and unanimous opinion that exposes the flaws in the biological opinion that lobstermen have been emphasizing from the beginning – flaws that threatened to sink our entire fishery and devastate our livelihoods and our communities,” [MLA Executive Director Patrice] McCarron said.
That point appeared to resonate in the judgment, which pointed out most of the deaths with known origin happened in Canada, and that the NMFS’s worst-case scenario would have the lobster and Jonah crab fisheries killing 46 whales per decade, “a staggering departure from the two documented deaths known to have originated in all U.S. fisheries over a period of nine years.”
The rule still remains in place, but new rules will have to be in place. The Portland Press Herald highlighted how doing away with the rules could actually harm the lobster industry. "Vacating the rule would create significant uncertainty over whether the Consolidated Appropriations Act continues temporarily to protect the Service and the lobstermen from liability and thus prevents the closure of the fishery," Ginsburg wrote.
Mills' address also addressed the timeline. "Now the National Marine Fisheries Service has to go back to the drawing board and rework these new federal regulations to protect right whales, but only when they are based on the best available date," she said, adding that because of legislation from the state's congressional delegation, "any new federal regulations or rules will still be delayed until 2028, giving us time to work with the industry and make sure that the right whales are protected but without sacrificing the lives and livelihood of our fishermen."
When it comes to further protecting Maine fishermen, Rep. Golden tweeted last week that he had introduced legislation known as the Northeast Fisheries Heritage Protection Act.
In a statement, Golden lamented that "[Bureau of Ocean Energy Management]’s decision not to remove one of the most lucrative and productive fishing grounds in the region from consideration for commercial offshore wind projects is just the latest in a series of unrelenting challenges to Maine fishermen. Prohibiting commercial wind development in LMA 1 protects Maine fishermen's way of life and of making a living for their families and their communities, just as they have for generations."
BOEM’s decision not to remove one of the most lucrative and productive fishing grounds in the region from consideration for commercial offshore wind projects is just the latest in a series of unrelenting challenges to Maine fishermen. 2/
— Congressman Jared Golden (@RepGolden) June 23, 2023